In Regents of the University of California v. Bakke (1978), the Supreme Court invalidated fixed quota systems for affirmative action as a remedy for historic racism, but decided that using race as a factor in college admissions was constitutional. It was a confusing decision with a 4-4-1 vote with the justices all concurring in part and dissenting in part (and resulting in a 5-4 decision). Bakke did very little to settle the constitutionality of affirmative action or even to clarify the issue—indeed, it only confused the issue further.

In the early 1980s, the city council of Richmond, Virginia passed a law creating the Minority Business Utilization Plan. It required contractors who worked on public projects with the city to subcontract at least thirty percent of their contracts to minority-owned businesses. The minority-owned businesses were defined as companies owned by at least fifty-one percent minorities including any African Americans, Native Americans, Asians, Hispanics, or Eskimos. It was a five-year plan, and the city could grant waivers in cases where contracts failed to meet the standard after due diligence. The city council was trying to achieve the general goal of “promoting wider participation by minority business enterprises in the construction of public projects.”

The J.A. Croson Company obtained a contract for plumbing fixtures for the city jail, and hiring a minority-owned subcontractor for the job would amount to seventy-five percent of the contract. Moreover, an interested minority-owned business (Continental) did not submit a bid in time before the company asked for a waiver. Continental finally submitted a late bid, but it was seven percent higher than the market price and would have raised the cost of the project by nearly $8,000.

J.A. Croson Co. refused to use Continental because it submitted a bid that was three weeks late and raised the cost of the project too high. Richmond denied J.A. Croson Co. the waiver and ordered it to re-bid the contract with minority-owned subcontractors. The company therefore sued the City of Richmond. Moreover, the lawyers for the company argued that there was no evidence of any past specific discrimination against minorities in the Richmond construction industry.

The case hinged on the Equal Protection Clause of the Fourteenth Amendment that read, “Nor shall any state…deny to any person within its jurisdiction the equal protection of the laws.” In the Bakke case, the Court had been deeply divided over the application of that Amendment as well as Title VI of the Civil Rights Act of 1964 with four justices arguing that affirmative action injured whites.

In Richmond v. J.A. Croson Co. (1989), the majority decided, by a vote of 6-3, that the plan violated the Equal Protection Clause of the Fourteenth Amendment. Justice Sandra Day O’Connor argued that section 5 of the Fourteenth Amendment held that, “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” In Fullilove v. Klutznick (1989), the Court permitted a ten-percent set aside program at the federal level. In Richmond, however, the majority opinion held that the states did not have the power to enforce the provisions of the Fourteenth Amendment. Therefore, Justice O’Connor introduced the principle of federalism into the decision.

Moreover, the Court also applied the principle of jurisprudence called “strict scrutiny” to determine the constitutionality of the Richmond affirmative action program. The Court set this high standard to be reached for any race-conscious program including affirmative action cases because of danger of racial discrimination towards any race. The Court ruled against Richmond in part because of strict scrutiny, though it did little to clarify the principle as applied to affirmative action.

Justice Antonin Scalia wrote a concurring opinion that used the dissent by Justice Harlan in Plessy v. Ferguson (1896) that made segregation legal, in which he argued for a color-blind Constitution. Scalia also argued that affirmative action programs remedied past injustice through injustice.

Three justices—Justice Thurgood Marshall, Justice William Brennan, and Justice Harry Blackmun—dissented from the majority opinion. They argued that affirmative action programs were still necessary to remedy past discrimination, especially as they provocatively pointed out, in the former Confederate capital. The state, therefore, had a compelling interest in creating the set-aside program.

The decision in Richmond v. J.A. Croson Co. (1989) banned a state affirmative action program that chipped away at affirmative action but did not rule the idea unconstitutional. It contributed to muddying the controversial issue even more. The disputes among the justices were representative of the continuing popular contention over the issue.